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ICE detainers a public-safety issue?

Wednesday, May 16, 2012

by Chip Mitchell

More than eight months since it passed, an ordinance that ended the Cook County Jail’s compliance with immigration detainers keeps causing sparks. The detainers are requests that the jail hold inmates up to two business days extra to help federal officials put them into deportation proceedings. Sheriff Tom Dart and some county commissioners are pressing for the ordinance to be scaled back. So is President Obama’s administration. They all say their motive is to keep dangerous criminals locked up. Yet officials offer no evidence whether inmates freed by the ordinance endanger the public more than other former inmates do. A WBEZ investigation sheds the first light.

The ordinance cut ties between the jail and U.S. Immigration and Customs Enforcement, the agency known as ICE. It passed last September. County Commissioner Tim Schneider offered a prediction.

SCHNEIDER: Under this ordinance, gang bangers, people involved in drug dealing, sex trafficking and criminal sexual assault will be released back into our communities that with these ICE detainers would be held and would be deported. This is clearly our Willie Horton moment here in Cook County.

Horton was a Massachusetts felon let out of prison on a weekend furlough in 1986. He did not come back and committed violent crimes that haunted Governor Michael Dukakis in his presidential campaign. Cook County may not have anyone like Horton on its hands. But within four months of the ordinance’s approval, news outlets had seized on someone else.

TV REPORTER: . . . when it was revealed that this man, Saúl Chávez, an alleged hit-and-run driver, had bonded out . . .

Saúl Chávez — that’s the pronunciation — was an undocumented immigrant from Mexico. ICE slapped a detainer on him but the ordinance required the jail to disregard it. When he posted bond, the jail let him out. Chávez missed his court dates and disappeared.

At a February hearing, Sheriff Tom Dart told county commissioners about other inmates he’d freed.

DART: Since September 7, the jail has released 346 individuals — who had detainers on them — that prior to September 7 would have been detained on the hold.

Dart said 11 of those 346 had committed new offenses. ICE, meanwhile, pointed to the Chávez case and, like Dart, claimed the ordinance undermined public safety in the county. Last month U.S. Homeland Security Secretary Janet Napolitano testified at a Senate hearing.

All this talk about public safety had me scratching my head. Just how dangerous are these people? Are they more dangerous than former jail inmates that ICE has not named on detainers? I looked for studies comparing the two groups. I checked with policy groups and criminologists . . . the sheriff’s office, the Illinois Criminal Justice Information Authority, ICE, the U.S. Department of Justice . . .

BECK: I’m not aware that any research has been conducted on this.

This is Allen Beck. He’s a top DOJ statistician. I show him the figures Sheriff Dart brought to that hearing. Some simple math shows that about 3 percent of the inmates the jail freed in disregard of immigration detainers had committed new offenses.[1]

BECK: That’s right.

The sheriff’s office told me it couldn’t come up with the rearrest rate for all the other inmates the jail released during those five months.[2] The office did provide numbers for Cook County defendants on electronic monitoring.[3] And I checked into a Loyola University study about felons discharged from Illinois probation.[4] The rearrest rate for both groups is about the same as for the detainer group. Beck tells me about something else.

BECK: You know, we have tracked felony defendants in large state courts for some time. We have statistics related to Cook County. We certainly have been able to determine a substantial failure rate.

Beck shows me what he means by failure. In the DOJ’s most recent look at Cook County felony defendants, about 25 percent of those who got out of jail with charges pending committed new crimes before their case was over.[5]

MITCHELL: Mr. Beck, given the evidence available, what can we say about the former inmates wanted by ICE?

BECK: Well, there clearly isn’t any data here to suggest that this group had a higher rate of failure — that is, of a re-arrest — than other groups that the Cook County sheriff may be dealing with. In fact, I think the evidence would suggest that these rates are lower.

But here’s another question about Cook County’s policy of disregarding immigration detainers: Are the inmates who bond out more likely to skip their court dates and go missing, like Saúl Chávez did? In the county’s court records, you can see a defendant has failed to appear when the judge revokes bail and orders arrest. The arrest order’s known as a bond-forfeiture warrant.

MITCHELL: So, Mr. Beck, of the inmates our jail released despite immigration detainers, we pulled court records on all but one of those who were charged with a felony and who got out by posting bond.[6]

BECK: . . . couldn’t find one.

MITCHELL: Right.

BECK: Right.

MITCHELL: And of those, about 12 percent were named on bond-forfeiture warrants during the five months.

BECK: About 12 percent.

For perspective, I rounded up some WBEZ volunteers to help check this figure against other felony defendants freed on bond over the five months. We came up with a representative sample.[7] Judges slapped about 14 percent of our sample with bond-forfeiture warrants during the period. Then I got some figures from the sheriff and the court clerk.[8] They show roughly how many bond-forfeiture warrants named any felony defendant who got out on bail during those five months.

BECK: So basically what you’re saying is that about 15 percent — what is that, one in six?

MITCHELL: Yeah, very close to the rate of the inmates released in disregard of ICE detainers.

The DOJ study also includes figures for how many Cook County felony defendants failed to appear in court.[9]

BECK: We found 21 percent.

MITCHELL: Now, Mr. Beck, whether we’re looking at the rearrests or the bail jumping, all our comparisons include some apples-to-oranges issues.

BECK: That’s right but we’re looking at numbers that certainly do not lead to a conclusion that this group released in disregard to the ICE detainers would pose a greater risk upon their release than the others.

If that’s the case, I wondered what all those officials meant when they said the Cook County ordinance undermines public safety. Sheriff Dart’s office and the Department of Homeland Security haven’t granted my requests to speak with them about this. An ICE spokeswoman says her agency won’t talk about this on tape and says ICE never claimed that the former jail inmates it named on detainers were committing more crimes or jumping bail more than other former jail inmates. The lack of evidence did not stop the officials from pressing for the Cook County ordinance to be scaled back. Tim Schneider — he’s the County Board commissioner who invoked Willie Horton — he proposed an amendment that would require compliance with the ICE detainers for inmates who appear on a federal terrorist list or face a serious felony charge. I ask Schneider whether his push has anything to do with age-old fears about immigrants threatening public safety.

MITCHELL: When you talk about Willie Horton in the context of the September ordinance and when you talk about Saúl Chávez — our research suggested he’s not typical — are you stoking those fears?

SCHNEIDER: Absolutely not.

He goes on.

SCHNEIDER: If these people could be held pursuant to ICE detainers, then that’s one less person that would flee justice. In the case of Saúl Chávez, he is out loose because we’re not complying with ICE detainers.

YOUNG: No one wants to be seen as endangering public safety.

Attorney Malcolm Young directs an inmate-reentry program at Northwestern University.

YOUNG: The claim of public safety is a good one to make any time you want to advance one or another criminal-justice policy. Here I think it’s incumbent on someone who’s making that argument to show why it is that the release of someone who is the subject of an ICE detainer puts the community at risk or creates a risk that that person is not going to show up in court.

Otherwise, Young says, the Cook County Jail may as well keep all inmates beyond what their criminal cases require — not just those wanted by immigration authorities.

Notes

1. Cook County Sheriff Tom Dart told Cook County commissioners at a February 9 hearing that his office had freed 346 inmates in disregard of U.S. Immigration and Customs Enforcement detainers since September 7, when the County Board enacted “Policy for responding to ICE detainers” (Ordinance 11-O-73). Of the 346, according to Dart, 11 committed new offenses during the five months. That means 3.2 percent had reoffended. Assuming the individuals averaged 75 days (half of the five months) in which police could have arrested them on the new charges, the per-day rearrest rate is about 0.04 percent.

2. The sheriff’s office says the jail released 30,549 inmates between September 7 and February 6. But the office says it could not quickly find out how many had committed new offenses during that period because the tally would require investigating the cases one-by-one.

3. The sheriff’s office says Cook County Circuit Court judges ordered 2,700 individuals into the sheriff’s electronic-monitoring program during the five months. Of those, according to the office, 53 were arrested for a new crime while on electronic-monitoring during the period. That means about 2.0 percent had committed a new crime — close to the 3.2 percent for the inmates released in disregard of ICE detainers. A shortcoming with this comparison is that the electronic-monitoring group does not include individuals released after a not-guilty finding, individuals who had served their sentences, individuals for whom all charges were dismissed and so on.

4. Loyola University Chicago researchers studied 1,578 felons discharged in November 2000 from Illinois probation. Within two months of their discharge, 3 percent had been rearrested for a new crime, according David Olson, an author of the study. That’s about 0.05 percent per day — close to the 0.04 percent rate for the inmates released in disregard of ICE detainers. Shortcomings with this comparison include penal and policing changes since the probation discharges, the presence of 740 non-Cook County individuals in the probation group, and that group’s lack of misdemeanants, pretrial defendants, individuals whose charges were dropped, individuals found not guilty, individuals who completed sentences other than probation and so on.

5. The most recent U.S. Department of Justice study that covers rearrests of former Cook County Jail inmates looks at 716 defendants who were charged in May 2006 with a felony and freed from the county’s jail before trial. About 25 percent were rearrested again in Illinois on a new charge before their case’s disposition. Assuming the median time between their first arrest and their adjudication was about 92 days, the per-day rearrest rate was roughly 0.27 percent — much higher than the 0.04 percent rate for the inmates released in disregard of ICE detainers. A shortcoming with this comparison is the DOJ study’s lack of misdemeanants and of individuals released because their sentence was served or their charges were dropped. Another shortcoming is that the median time, 92 days, refers to all counties in the DOJ study. The figure for Cook County alone was not available.

6. The sheriff’s office provided a listing of individuals the jail released between September 7 and February 6 in disregard of ICE detainers. WBEZ focused on flight risk by examining a subset — the 133 felony defendants who got out of jail by posting bond. Court records on one of those defendants could not be found, reducing the number to 132. Judges named 16 of the 132, or 12.1 percent, on bond-forfeiture warrants (BFWs) during the five months, according to a WBEZ review of the records. The rate per day is 0.16 percent. But there’s a caveat: It’s possible that some of the 16 had not appeared in court because ICE was holding them or had already deported them. A January 4 letter from ICE Director John Morton says his agency had arrested 15 individuals that the jail had released since September 7 in disregard of ICE detainers. We asked ICE to identify the 15 but the agency pointed to a privacy policy and declined. We also asked ICE whether it notifies the Cook County Circuit Court after taking into custody someone with a pending criminal case in that court. The agency didn’t answer whether it informs the court, whose judges order the BFWs. The agency said it does inform local law-enforcement agencies and the State’s Attorney’s Office.

7. WBEZ generated a 133-member sample of felony defendants freed on bond over the five months. Of those, 18, or 13.5 percent, were named on a BFW during the period, according to a WBEZ review of their court records. That rate is close to the 12.1 percent for inmates released in disregard of ICE detainers. A shortcoming of this comparison concerns the degree to which the sample is representative. Randomness was impossible due to limits on public access to records kept by the sheriff and the Clerk of the Circuit Court and due to a lack of data integration between the two offices. For example, the felony cases in the clerk’s records were identified by case-number digits that signal the case’s transfer to the court system’s criminal division, which handles felonies only. But some felony cases never reach that division.

8. Figures from the sheriff’s office suggest that roughly 8,000 felony defendants got out of jail during the five months by posting bond. Figures from the clerk’s office suggest that judges ordered 1,247 BFWs in felony cases during the period. The BFWs cover roughly 15.6 percent of the defendants. The rate is close to the 12.1 percent for inmates released in disregard of ICE detainers. This comparison has at least two shortcomings. First, the “roughly 8,000” figure refers to a 7,785-9,089 range provided by the sheriff’s office, which says it can’t quickly determine the felony/misdemeanor status of 1,304 cases. Second, the clerk’s office does not track when defendants were released from jail. The 1,247 figure, therefore, pertains to the five-month period but not the 8,000 defendants per se.

9. In the DOJ study, judges named 21 percent of the defendants on a warrant for failure to appear in court. Given the median 92 days from arrest to adjudication, 0.23 percent per day got such a warrant. That rate is higher than the 0.16 percent for inmates released in disregard of ICE detainers. This comparison has at least two short shortcomings. First, the detainer group includes just those who posted bond. The DOJ group includes additional pretrial-defendant types, such as those released on personal recognizance. Second, the median time, 92 days, refers to all counties in the DOJ study. The figure for Cook County alone was not available.